GANGA SAHAI Vs. KANHAIYA LAL

JUDGEMENT

(1.) It appears that one Jumna Das owned some zemindari property in Mauza Basi in the District of Meerut. He died more than fifty years ago, leaving him surviving a widow and a daughter called Musammat Nanhi and Musammat Dharmo, respectively. On the death of Jumna Das, Musammat Nanhi entered in possession of the zemindari property of her deceased husband as a Hindu widow. She executed in 1879 a deed of usufructuary mortgage in respect of the said zemindari property in favour of certain persons. Musammat Dharmo brought a suit in the life time of her mother for the cancellation of that mortgage but was defeated on the ground that the mortgage was given for legal necessity. Musammat Nanhi died in 1892 without redeeming the mortgage of 1879. On her death, mutation of names in respect of her husband s zemindari property was effected in 1892 in favour of one Ganga Sahai with the consent of Musammat Dharmo. The mortgagees, however, remained in possession till March 1911, when Ganga Sahai redeemed the mortgage.

(2.) On the 29th March 1911, Kanhaiya Lal sued in the Court of the Additional Munsif of Meerut to recover possession of the property redeemed by Ganga Sahai on the following allegations. He said that he, his cousin Gayani and Jumna Das were descended from a common ancestor and that after the death of Musammat Nanhi, he, Kanhaiya Lal, and Gyani, became entitled to succeed to the property of Jumna Das, as daughters were excluded by custom. Ganga Sahai was a stranger to the family and trespasser who had, without any right, on the death of Musammat Nanhi, which occurred about ten years prior to the institution of the suit, managed to get his name entered in the revenue papers. He and not Musammat Nanhi had created the mortgage which he had redeemed on March 1911. The cause of action accrued in March 1911 when the plaintiff came to know of the mutation of names in favour of Ganga Sahai. The claim was brought against Ganga Sahai, Musammat Dharmo, two other ladies of the family, the descendants of the original mortgagees, a sub-mortgagee from the latter and against Gayani because he had declined to join in the suit.

(3.) The claim was resisted on various grounds. It was urged in defence that Kanhaiya Lal was not a reversioner of Jumna Dass, in fact he was in no way related to the latter, that Ganga Sahai was the next reversioner, that daughters were not excluded by custom that Musammat Nanhi had created the mortgage in suit, that she had died in 1892 when mutation of names was effected in favour of Ganga Sahai, and hence claim was barred by limitation, and that in any case, Kanhaiya Lal must pay the redemption money to Ganga Sahai. The learned Munsif found that the pedigree set out in the plaint was not proved, and that the claim was barred by limitation. He dismissed the suit of Kanhaiya Lal accordingly. Kanhaiya Lal preferred an appeal to the District Judge which was disposed of by the Additional Judge. The latter disagreed with the first Court on the grounds of limitation and the pedigree and decreed the claim. Ganga Sahai has come up in second appeal to this Court. He challenges the decree against him mainly on the point of limitation; though two other objections relating to the succession of daughters and the liability of the plaintiff-respondent for the redemption money of the mortgage of 1879 are also urged.